Paddy, section three of the twentieth amendment answers that: "If, at the time fixed for the beginning of the term of the President, ... a President shall not have been chosen ... or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified...."

Will this kill the issue? Well, as we all know, after the Supreme Court decided Raines v. Byrd, the line item veto issue went away never to arise again, didn't it! Oh, wait... The trouble with throwing out an issue on standing rather than the merits is that a dismissal for want of jurisdiction leaves the question on the merits undisturbed. Don't count out someone coming back after the inauguration. I have no reason to doubt that Obama was really born in Hawaii, and I'd much rather focus attention on the far more flagrant breach represented by the Clinton appointment - but people will do as they will.

We need a collective therapy institute for the birth certificate truthers, the Trig truthers, the 911 truthers, the moon landing truthers, and the JFK truthers. Add Dennis Kucinich and the "impeach Bush" crowd. Put them all together in a camp in the woods for 3 months and let them conspiricize to their hearts' content.

Palladian said..."Just wait a few years. Then a higher authority than the Supreme Court- the voters- will decide if Barack Obama was qualified to run for the White House."

Arguably, there's something to be said for the idea that they already did. That is, if the question is close and well-publicized, there's surely an argument that the voters should be deemed to have acted as a tribunal and decided the issue. I'm somewhat skeptical about that argument, but I'm sure Jesse Choper loves it.

(If the question was not close, however, I would never accept such an argument - if the Governator ran for President, for example, I would support the courts voiding the election even if it was unanimous.)

Since Obama has confessed to being a smoker, I'm thinking that the stigma of that awful practice will cease to exist, and tobacco companies will become a good investment. The court refused to hear the argument, because if Obama wasn't born in the US. Biden would be the president.

Simon, I meant qualified in other ways, not qualified in terms of the nativity issue. Obama's election, and the fact that it wasn't a landslide, meant that enough voters decided he was qualified enough, but I don't think it's a definitive judgment on his merits. The first term of any President is a trial period, for better or worse. In a few years it should be more obvious to people whether he is qualified to remain President after his first term ends.

Yes, god forbid we treat the words in the constitution as though they had meaning! Althouse is right, her guy won so shut up and go away!

I'm sure when the founders wrote that only natural born citizens could serve as president, they didn't really mean it. Or if they did, they they surely didn't mean for anyone to actually address the issue. It's just sort of floating out there. As a law professor, Althouse is undoubtedly aware of all the clauses in the constitution that are advisory only and if she says this is one of them, then it must be.

At a minimum, we should only allow this question to be raised by Obama's supporters. People who didn't vote for him have no standing--after all, he's not their candidate.

I always thought Ann's tags were cutesy google bait, but I didn't really realize how useless they were until I tried to find out what was being said 'bout Bush's TANG paystubs and records during the second-to-last election.

Not by nuts, but by people how wanted to see a reasonable effort to see paper proof (not Rather paper, real paper) of a claim. Which always seemed reasonable enough.

One of the problems with the huge pass that BHO got from the MSM is that non wingnuts (like me, or so I think) are now sitting around wondering why coughing up a birth certificate is such a big deal? I recently had to produce them for all three of my kids to go to a new school. Again for them to get passports. And once before to get one of them citizenship papers.

But apparently a guy who has been planning his transition for 9 months can't fill out a form.

My theory has always been that he started with a different name, changed it during college or law school, and didn't want to muddy "the narrative." Best case. So embarrassing but non fatal.

But what if there is a problem here and someone hacks it out of the HI Sec of State office and it turns out that he's not eligible or has taken the oath of office under the wrong name. WTF do we do then?

I always thought he was horribly unqualified to be president and dislikes a LOT of his policies (as stated) immensely. But I live in this country, and aside from healthcare and guns, I hope everything he does succeeds because that is what should happen. But this b/c thing is kind of worrisome.

Or if they did, they they surely didn't mean for anyone to actually address the issue.

The Framers didn't mean for gadflies, kibitzers, or "officious intermeddlers" to be able to address the issue. Only people who were actually harmed. Hillary would have standing, and I believe McCain would have standing as well.

But the proper forum to rule on this issue would be Congress.

I recently had to produce [birth certificates] for all three of my kids to go to a new school. Again for them to get passports. And once before to get one of them citizenship papers.

Were these the ones you got when the kids were born? Apply for replacements. Odds are they will look just like Obama's.

Our founders wanted people who were loyal by BIRTH to be eligable to be president. In their view, the country would be harmed otherwise, therefore WE THE PEOPLE have standing.

Throwing this into the same bag with every other "conspiracy theory" only shows the dishonesty of those doing the arguing. The constitution says native born citizen. Period. You liberals need to show as much respect for the actual words of the constitution as you do for your many invented rights, like privacy, lawyer-client privilage, miranda, etc. They are not spelled out, this is.

john said..."What is a "natural born citizen"? The 14th Amendment defines who is a "citizen", but what does "natural born" mean? Does "natural born" depend on parents citizenship? Place of birth? Both? Something else? It is a substantial question, and we really ought have a definition. What are the requirements to be president ought to be clear, definite, and known well in advance of elections."

My co-blogger Pat and I explored that in regard to McCain's status as a natural born vel non - my post is here, his is here. The bottom line is that the original meaning of "natural born citizen" is supplied by the common law's comprehension of the term "natural born subject." Natural-born subjects of Britain were at very least those "born within the dominions of the crown of England," Blackstone tells us. At very least, then, one who is born within the dominion of the United States - i.e. on land under the sovereignty of the United States, including states, territories, and at least some federal lands such as the District of Columbia - is eligible to the Presidency.

Originalism doesn't definitively answer the question, but it does provide the framework for the argument: it directs us to find out what a reasonable person of the founding generation, who had until recently been British subjects and who were used to living under a modified version of British common-law, would have understood the term to mean. I believe they would have clearly understood it as a common-law term of art, adapted to the circumstances of the new nation (cf. Joseph Story, A Familiar Exposition of the Constitution of the United States 21 (1840); 9 The Catholic Encyclopædia 71 (1913)).

Though, does "a President shall have qualified" suggest that the VP-elect would only be in charge as long as it took to get another, qualified, President elected? Or does that mean he would serve the full term?

The thought of Biden stepping up assures my not even being slightly tempted by this present bit of hassle, which is only different from other conspiracy theories because it's this one, rather than one of the other ones.

I would guess, given a plain reading, the whole 'natural born' requirement also constitutionally rules out c-section babies. We need to have complete birth records and testimony!!

Paddy - I imagine that it contemplates a scenario à la the 1800 election, where the matter has gone into the House and deadlocked. In that scenario, if the Senate could get its act together and select a Vice-President, that person could serve until the House sorted out the mess. (The 2000 election is different: if that had continued into January, with the electoral college unable to meet, there would potentially have been neither a President-elect nor a veep-elect, so, when the office became vacant on January 20th, the line of succession would activate. Larry Summers would have become acting President.)

Because there is no provision for a special election, one must assume that in the 20th amendment scenario, the veep would serve until the certification of a qualified President - which would happen either when the House sorted out the mess and completed the election, or, it's conceivable but extremely unlikely, the next election.

As to C-sections, I assume you're joking, but if not, I'd point to my comment above - the term means, as I see it, roughly what the common law would have comprehended natural born subjects to mean, adapted to the situation of the newly-independent nation. When the framers borrowed from the common law specifically, they borrowed from it in the same way that the colonies had taken the common law generally.

I'm sure when the founders wrote that only natural born citizens could serve as president, they didn't really mean it.

I'm sure of the opposite. I believe they had three fundamental reasons for this requirement. First, to prevent an English politician from coming over and running for the presidency. Second, that the sympathies of someone who was born and raised in the Americas would stay there. Third, that someone raised in America would better understand what makes America tick--they wouldn't be importing old archaic ideas from Europe.

I would agree that they were more concerned about where someone was raised than where they were born, but using birth as a requirement is simpler.

Re: Obama; the people bringing these cases are nut cases, but the resistant of Obama to simply produce the documents in question is baffling and only feeds the fires of speculation. One frustration with the MSM is how much they've let Obama keep secret, including transcripts and health records. While these items may not be that important per se, I'm bothered by the precedent it sets. I suspect that we're going to see a continuation of tight information control from the White House. I don't blame them, but I will blame the press if they just sit back and let it happen.

I would comment that Simon is correct in what he says, but overemphasizes Place By the time Blackstone commented, Britain already had a large colonial Empire and Brits having kids right and left in non-British lands like Spain, France, Italy where many had 2nd homes or summered..The emphasis was on jus sanguinis, a birth was a new Brit subject by blood alone if the father was a Brit, or a Brit mother married a non-Brit and petitioned to make the child natural born.

In the United States, the Constitutional requirement of natural born had nothing to do with place of birth until that was Added as a 2nd path to being natural born in the 14th Amendment. Americans were being born deep out in the frontier in places that were not even US territories, where Indians, Mexicans, etc. had sovereignity.

So for 81 years, "natural born" had absolutely nothing to do with place of birth. Only natural birth from one or more parents of American "blood"...and again jus solis citizenship by happenstance of what soil the baby dropped out on was a NEW path. It did not revoke the existing right of the people to natural born citizenship by jus sanguinis.

The masses being confused on this is understandable. For decades the court has ducked ruling on WHAT elements of jus sanguinis make for a "natural born" citizen and whether or not an anchor baby plopped out an illegal immigrants womb is a citizen at all. Now with so many people in America born to illegals, and with an interconnected world and dual citizenships and bi-national parents...the Court's foot-dragging and lack of legal direction has made ANY decision they make that would have been easy and widely accepted 30 years ago now highly unacceptable to a significant number of people with a high stake in the legitimacy of their citizenship. Or any action that would declare a baby born to soldiers, expats obligated to work overseas - a 2nd class citizen.

***********A side comment - this subject has really dragged the Right Wing Truthers out in force on the Right Wing Blogs. They went wild with hope they could find the Great Conspiracy, the Secret Kenyan Birth - and that their particular reading of "The Sacred Parchment" would delegitimize Obama and negate the 2008 election.

Maybe I'm totally crazy, but there's another issue here, one which non-Obama Derangement Syndrome people bring up: there is simply no mechanism in place to ensure that this particular provision of the Constitution is not violated. (As Simon will probably point out, there is no mechanism to ensure that the Emoluments Clause isn't violated, either.)

To some people, whether or not Obama is actually a natural born citizen or not is totally irrelevant; they just want a good process to ensure that the Constitution doesn't get trampled.

Interestingly, this turns ordinary citizens, who usually don't think about the Constitution, into con law scholars. They all ask the questions that we were asked in Con Law class: how do various rights get enforced? How can we enforce various limitations on the government, elected officials, and federal agencies? The Constitution tells us a lot about what the government can and cannot do, but precious little about how to enforce it.

Eight years ago, Gore tried to litigate his way into the White House, and picked up the esteem of the nutroots and a Nobel along the way. This year, the litigaters are dismissed as crackpots (which they are).

Joe - Re: Obama; the people bringing these cases are nut cases, but the resistant of Obama to simply produce the documents in question is baffling and only feeds the fires of speculation.

Obama's Team is watching a pack of Right-Wing Truthers tainting Republican conservatives in the process of their howling.

It is also useful to have those enraged reactionary Truthers screaming at events, filing lawsuits because it tamps down any Lefty outrage about Obama's Transition picks for the next Administration, and focuses the angry Left on marginal Truther assholes on the Right..

So Obama's people are following the old maxim, when you see your enemy digging a hole, encourage them to keep digging. Better yet, buy shovels.

With any luck, Obama will have the media focusing on screaming sore loser Truthers the media may just describe as "angry Republicans" all the way up to trying to disrupt his Inauguration and tick off 90% of the public.

As to the money Team Obama is spending fighting the Truther lawsuits...rather than get to their knees and proffer up "certified Vault original document" to Truther lawyers and kow-tow to appease them? That money is Team Obama's equivalent of purchase of more shovels or more digging time for their enemies. And thus more time for people to associate Republicans with Truther assholes - or give the people ignorant of Obama's citizenship bona fides or the law an opportunity to show others exactly how ignorant or "sore loser" appearing they are.

It's not like the money Obama is spending playing hooked Truthers like fish is a problem. He has 30 million left over from the election, and could raise additional millions to pay for legal costs at a blink of an eye. If anyone is bleeding their hard to replace money - it is the Right Wing Truthers.

"One of the problems with the huge pass that BHO got from the MSM is that non wingnuts (like me, or so I think) are now sitting around wondering why coughing up a birth certificate is such a big deal? "

Actually, he did. And the wingnuts called it a forgery. Then the State of Hawaii certified it. And the wingnuts cried conspiracy.

Does anyone really believe that production of the actual birth record would satisfy these people? They're too invested in the outcome ever to admit that they're wrong

Cedarford, I agree that, as Pat put it op. cit., it was long-settled in English law "that children born of ambassadors and other agents of a sovereign government born while abroad are citizens of their parents' country, not of the country where their parents happened to be serving at the time," what authority can you cite for the proposition that "[t]he emphasis was on jus sanguinis"? You're advancing a broader proposition. According to Blackstone, the focus was on neither blood nor soil: it was on ligamen, on the allegiances naturally owed by a person. Seen from that perspective, it is obvious why children of diplomats born abroad, for example, were regarded as natural-born subjects of their parents' country. But jus sanguinas doesn't necessarily follow from ligamen; for example, the child of an English couple who had abandoned their country, pledged fealty to the Tsar of Russia, and had thereafter lived in St. Petersburg would not have been a natural born subject of the British crown.

We do agree, however, on the criterion. The criterion is what English law, as the colonists understood it, comprehended that term to mean, and how it was adapted to the needs and peculiar circumstances of first the colonies and then the new nation.

Back when George Romney ran for president in 1968, it seems that this issue came up (he was born in Mexico) and the consensus was that since his parents were U.S. citizens, he was qualified to hold the office.

AllenS, IANAL, but I don't think there is a national standard for birth certificates. Each state is free to make their own, and it would be wrong to assume that states would have similar data listed on birth certificates.

Simon, while I agree with you about the merits of the case not being resolved if the case were dismissed for lack of standing, another win for the standing doctrine is essential, particularly after Massachusetts v. EPA. The standing doctrine is one of the more important limitations on the power of the Federal courts. It is one of the ways to ensure political questions are resolved by the elected branches of the federal government.

The envirowackos, to name one standingless group of miscreants, have convinced the Supreme Court to make mincemeat of the doctrine in the last 30 years. If we're ever going to put the envirowacko beast back in its cage, we need the standing doctrine.

I am happy to see Althouse's comments section lunatic free, for the most part -- only a handful of BO Troofers in evidence. I am absolutely amazed by the frenzy occurring on the other conservative blogs, however. Michelle Malkin, Captain Ed, Patterico, and David Horowitz, to nume just a few of the more prominent figures, have written extremely blunt dismissals of this conspiracy nonsense, only to be torn to shreds in their comments. On Hotair, the comments are about 99-100 in favor of the conspiracy theory. Patterico's site might be 9 in 10. It's pretty ugly.

I don't know if this means there are a lot of people falling for this nonsense, or if it just seems like there are a lot of them because they all congregate around the blog posts that discuss this issue.

On a lighter note, remember the African Press International scam from right before the electon? The hoax was that Michelle Obama had called some obscure African news agency and chewed out their editor for an hour on the phone? They "promised" to release the audio tapes before the elction, but never did.

Believe it or not, that hoax continues, and there are flocks of people over there still waiting for the tapes to be released. They have even set up a Chat Room where all the BO Troofers hang out talking about Obama the Usurper.

I would have thought conservatives would take defeat better than this. Especially given the fact that Obama has made some pretty moderate appointments since the election.

Richard, I didn't mean to express any disagreement at all with that view of standing. I'm a standing hawk - indeed, one of the reasons I think Diane Sykes is so good is that she has shown time and again that she's particularly sensitive to jurisdictional issues. I agree about Mass. v. EPA, and wrote a short paper about it here, explaining just how much of an outlier it is. I couldn't agree more that standing is a critical limitation on the authority of the federal courts - you're preaching to the choir on that point. ;)

The point that I was making was much more limited: it would be a mistake to think that because this litigant didn't have standing, now, some other litigant (or even these litigants) might not have standing to go after Obama at some point after he takes office. For that reason, a denial on standing grounds does not, by itself, support Ann's broad contention that "[d]oubters will have to nurse their doubts on their own for all eternity." One can only speculate on what kind of injury would give rise not only to standing to sue, but standing to ask for the particular form of relief that would be at issue (see the Lewis, Steel Co., and Laidlaw cases), namely the extraordinarily strong medicine of evicting a President from office. Nevertheless, I do think the federal courts have that power (from the All Writs Act, if from nothing else) so long as it is called into play properly. (My unusually hawkish view of standing arises at least in part because I have a relatively expansive view of the power of federal courts: I'm particularly concerned with threshold doctrines like standing, to ensure that such power is only used when properly invoked.)

Hawaii let parents define the race to be placed on the Birth Certificate. It's not up to the government. It's up to the parents. His father's race is listed as African because that's what his parents wanted.

In other words, it's not a "mistake" in the "forgery" that will blow the cover off the massive BO Conspiracy.

Not that several books won't be written about this in the years to come. There's a gold mine waiting to be had for those who wish to cater to the conspiracy crowd. Just like during the Clinton years -- but worse.

Peter Hoh,LOL, I missed your post about API the first time I read through the comments. Did you know that nonsense is still going on? They have a chat room set up, and the rumor that they've been discussion the past week is that Sarah Palin is in secret talks with API, and when they release the tapes, Obama steps down, Sarah Palin will step forward and be made president. Funny stuff.

That's right, Ann. Mr. Barely, The Little Blessed Black Fraud will be POTUS. I don't need to worry about living with that, because there are other bigger fish to fry. The Constitution will bear out this particular attack against it. Just because you are a law professor doesn't shield you from being a sucker.

Hmm, someone claimed that Obama did release his birth certificate. Which his campaign did do. And the Sec/State Hawaii did certify that they have his original (file) birth certificate, er, on file.

But that is not to say that the two were the same.

So, and I know LGF says drop it, but I also remember seeing a lot of commentary about the digital version of the certificate being doctored. I have not comment on that - I couldn't even have proven the Dan Rather stuff forgeries.

But, like John Kerry's still-unreleased military records, I do wonder why BHO doesn't just let the HI Sec/State release a copy to some third party.

@Cederford seems to think that having "truthers" screaming about this is useful to Obama - I don't think it is, actually. Because on a slow news day you do not want some WaPo writer picking up a story like that (true or false). I mean, look at the krep that got flung at Clinton on a slow day.

As it happens, Obama's approval rating shortly after this year's election was also in the 70% range. Haven't seen if it has changed much in the last couple of weeks.

But conservatives should pay attention to that number. It indicates that not 45% (McCain's vote) are "base" Republicans. Only about 25% of the country feels as srongly a "base" Republicans, and about 70% will give him or any other Democrat a reasonable chance if he performs well or if we generate sympathy for him by treating him the way we treated Clinton.

So, Ceder is probably right: The more the unhinged/loony right goes after Obama, the more popular they will make him.

"Shouldn't it matter if a person running for elected office is constitutionally qualified?"

This is PRESIDENT-ELECT BARACK OBAMA we're talking about, not some normal candidate! He didn't run for office, he strode there, confidently! I ask you, did people demand to see Jesus Christ's qualifications when he claimed to be the Son of God?

Oh, wait... Yeah, they kind of did. Jesus had to repeatedly perform miracles in order to convince people and get them to follow Him. Obama merely had to promise to perform miracles and he ended up with more disciples than there were humans walking the Earth during Jesus' lifetime.

To some people, whether or not Obama is actually a natural born citizen or not is totally irrelevant; they just want a good process to ensure that the Constitution doesn't get trampled.

BINGO!

It has nothing to do with the evidence for or against Obama (personally, I don't see any reason to doubt that he was born in Hawaii and fully expect a formal examinaton to conclude the same), but I am dismayed when even otherwise responsible people (ahem, Althouse) simply refuse to admit that constutional requirements matter.

The effort to paint this as a nutter issue is dispicable. Even if the nutters support Supreme Court review, that just means this is one of those times the nutters are right. (I believe the Supreme Court is the proper venue because it is, theoretically, the least political branch and because the Chief Justice does the swearing in).

So for 81 years, "natural born" had absolutely nothing to do with place of birth. Only natural birth from one or more parents of American "blood".

Hopefully "natural born" citizenship is not this chicken or egg-like paradox. Absent birth in America, no one ever had American blood to pass on, therefore ius soli is fundamental. Simon's ligamen explanation is appealing, but it is new to me.

There is nothing on my birth certificate about the race of my parents.

The old photostatted BC my parents had for me stated their races and their occupations. I forget if my laser printed one has their races, but it lacks their occupations.

Simon - But jus sanguinas doesn't necessarily follow from ligamen; for example, the child of an English couple who had abandoned their country, pledged fealty to the Tsar of Russia, and had thereafter lived in St. Petersburg would not have been a natural born subject of the British crown.

I understand what you are saying, but English subject shifting their allegence to the Czar is the same as an American couple renunciating their citizenship to become, say, citizens of Australia. There would be no dispute that any children produced, even if outside Australia, would be Australian citizens, not American (unless they snuck illegally in and dropped an anchor baby).

Russians tie citizenship closer to ethnicity, so longtime families of Chechens, Germans, Jews living in Russia would have the rights of citizens, but not be considered true Russians. The Chinese believe that any overseas Chinese ethnics are simply Chinese. Even if the ethnics are 15th generation Malaysians or 4th Gen Americans.

Ligamen, which can be read shorthand as "loyalty", doesn't really fit in America because we don't tie citizenship in to declarative loyalty oaths. Nor did the Brits..the assumption is that if you have Brits in good standing as citizens, their blood issue is automatically a little Brit (jus sanguinis).

But not automatically (which can also be interpreted since it is automatic at birth with no plea, no loyalty oath required of the tyke - as being "natural born") for said couple in good standing to bring over Aunt Hilda from Denmark and claim blood ties makes her a citizen.

So blood citizenship has always been sort of figurative, and limited as an automatic thing to "issue", not a right given to other family relatives automatically. Only kids.By figurative, I mean like America, the Brits who made common law before the US Constitution were a mutt race, not ethnically pure like Russians or Yamotos. An Englishman might be Saxon, Welsh, Scot, Norman, Viking, Irish, or some descendent of Dutch Protestants or German made citizens back at the time of Henry VIII or QEI. So no "blood test" or ethnic pedigree papers would be probative.But all so qualified as citizens have blood issue considered Brit from the start, anywhere in the world, since the British Empire started and Brits began setting up businesses and 2nd homes in other sovereign lands (It was actually considered healthier, back in the days of TB, for Brits to have a kid in Spain, Portugal, Southern France away from the cold, dank weather from October to May. Same general idea in America, before and after we added jus solis to law in 1868.*******************Palladian - If I'm nuts, then serious problems exist with secret security clearance screening, military psych tests. "Paleocons" just have different beliefs than you, though I also add healthy preferences for certain socialist solutions, like with our failed healthcare insurance system..

I've done a lot of geneology work, and only death certificates contain races and occupations.

Then you haven't done enough work. I'm looking at certified photostat copies of the "Standard Certificate of Live Birth" for myself and my husband. 1950 and 1949 from two different states. On both it had the race and occupation, of the father only not the mother. I guess they didn't expect mothers to work then.

My daughter's "Certificate of Live Birth" doesn't have the race or occupation, so things must have changed over time.

"Interestingly, this turns ordinary citizens, who usually don't think about the Constitution, into con law scholars. They all ask the questions that we were asked in Con Law class: how do various rights get enforced? How can we enforce various limitations on the government, elected officials, and federal agencies? The Constitution tells us a lot about what the government can and cannot do, but precious little about how to enforce it."

Not all constitutional provisions are enforced by courts, and federal courts have important limitations. Other officials are sworn to enforce the Constitution, and sometimes their decision is the last call.

This is a subject I've concentrated on for a quarter century and that is reflected in my posts, however elliptical.

Prof. A: Apart from the naturalness of Obama's birth, if you have written on standing in such odd situations, I would appreciate a pointer. What if Arnold did get elected? Could he be stopped? And by whom?

I'm confused. They say you have to be a natural born citizen to become President and Obama says he is. So does the State of Hawaii. Where's the Constitutional question?

With Arnold, of course, it's a different matter. There, you would be openly ignoring the Constitution. Obama, to the contrary, has made a reasonable if not overwhelming effort to show that he respects the Constitution and is abiding by it. It's not like he was telling people, "I'm Kenyan but you can elect me anyway."

I say this as a McCain voter who was equally appalled when people tried to muddy the waters about his citizenship. If you want to get your dander up about the Constitution being ignored, drop this and read up on Hillary's appointment.